I choose to remember Scalia by what he loved best

His own words:

  • On where black kids should go to college

    “There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school, where they do well”

    Scalia during oral arguments concerning Fisher vs. University of Texas

  • Gay sex should be illegal, or else we may have less homophobia

    “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. ”

    Scalia’s dissent in Lawrence vs Texas

  • Native Americans, during their religious rituals, cannot be excluded from obeying the law because of their religious belief

    “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. (…) To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

    Scalia’s majority opinion in Employment Division v. Smith

  • To counteract the consequences of the above ruling, Congress passed the Religious Freedom Restoration Act, to protect the ability of religious minorities to carry on their rituals. Subsequently, the Supreme Court found that corporations have religious beliefs, and that not providing comprehensive health coverage is a ritual

    “By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs. (…) The contraceptive mandate, as applied to closely held corporations, violates RFRA”

    Alito’s majority opinion, joined by Scalia, in Burwell v. Hobby Lobby, inc.

  • On the majority opinion in Obergefell v. Hodges

    “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

    Scalia’s dissent in Obergefell v. Hodges

4 thoughts on “I choose to remember Scalia by what he loved best

  1. Thanks for the quotes Luca. Actually, I agree with almost everything Scalia said above. He had a sharp mind.

    Obviously, you also miss the irony that you denounce on the one hand Scalia’s claim that universal laws should not be governed by religious laws (“Native Americans, during their religious rituals, cannot be excluded them from obeying the law because of their religious belief”), and on the other hand, demand that the anti-homosexual religious beliefs of others should be rejected to promote a universal liberal world view.

  2. I would be strongly against (and Scalia’s reasoning in Employment Division v. Smith would support the constitutionality of) a law requiring gay sex to be part of every religious ritual, or requiring pastors to express a “liberal world view” in their sermons, so I don’t see where the contradiction (or “irony”) is.

  3. None of these quotes are objectionable if read in context along an effort to seriously understand Scalia’s judicial philosophy.

    One example: Scalia believed that the Supreme Court should set out clear, binding rules that could be easily understood and interpreted rather than flexible and vague standards; this is, in part, where his irritation at the notion of a (limited) right to “express your identity” comes from. And rightly so — whatever does that mean, or doesn’t mean? Can being an interior decorator be my identity? Could the government be trampling on it by requiring interior decorators to get a license? I, for one, can easily understand Scalia’s desire for “more disciplined” legal opinions.

  4. Employment Division v. Smith seems to be reasonable, but it is hard to see how to justify the Hobby Lobby case given that, especially this paragraph:

    Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual’s religion was United States v. Lee, 455 U.S. at 258-261. There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs. We rejected the claim that an exemption was constitutionally required. There would be no way, we observed, to distinguish the Amish believer’s objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes.

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